Submission to the Law and Order Select Committee on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill
This submission is by the Human Rights Foundation of Aotearoa New Zealand (“the HRF” or “the Foundation”), a non-governmental organisation. The HRF was established in December 2001 to promote and defend human rights through research-based education and advocacy. We have made submissions on new laws with human rights implications. We also monitor the compliance and implementation of our international obligations in accordance with the requirements of the international conventions New Zealand has signed, and have prepared parallel reports for relevant United Nations treaty bodies to be considered alongside official reports – recent reports have been to the UN Committee against Torture, the Economic, Social and Cultural Rights Committee, and the Human Rights Committee. Though the primary focus of the Foundation is on human rights in New Zealand we recognise the universality of human rights and have an interest in the Pacific and beyond. We request the opportunity to make an oral submission to the Committee, preferably in Auckland. We understand that our submission may be made publicly available if submissions are requested under the Official Information Act 1982.
- Certificate of Attorney General
The Human Rights Foundation agrees with the conclusion of the Attorney General that the effect of the Bill, namely the creation of a blanket ban on voting by serving prisoners, would be contrary to the right to vote set out in the Bill of Rights Act and unjustified for the purposes of section 5 of the New Zealand Bill of Rights Act.
- Imprisonment as “Civil Death”
Prisoners lose the right to liberty and any right that requires liberty: they retain all other rights. The idea that imprisonment amounts to “civil death” and the end of the right to vote is inappropriate in an age of universal suffrage and freedom of expression: any amendment to the existing law should be to extend rather than reduce the franchise since all prisoners, whatever their sentence, have a legitimate right to engage in political discussion and decision-making. In the first place, prisoners may often be affected by measures introduced by Parliament and upon which politicians may stand for election: to say that they have no right to express their opinion through the ballot box is akin to taxation without any representation and fundamentally undemocratic. In this context, it should be remembered that voting is a right that can be lost only when it is necessary not a privilege that has to be earned. Secondly, as noted in New Zealand’s National Report for the United Nations Universal Periodic Review, “New Zealand has a tradition of promoting and protecting human rights both at home and overseas.” The report goes on to claim: “The idea that everyone deserves an equal opportunity in life – “a fair go” – is an important part of New Zealand’s national identity and approach to human rights on the international stage.” New Zealanders consider we should lead and/or be guided by international standards: this Bill announces New Zealand’s intention to ignore international standards and to breach the obligations it has undertaken by becoming a participant in the treaties that form international human rights law. Article 25 of the International Covenant on Civil and Political Rights provides that “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Art 2 [which includes a catch-all “other status” that arguably includes prisoners] and without unreasonable restrictions: … (b) to vote…”
- European Court of Human Rights
The Grand Chamber of the European Court of Human Rights, in the case of Hirst v UK (6 October 2005, appn 74025/01), considered the legality of the blanket ban on voting by all prisoners who happened to be serving prisoners on the date of the election in the UK. (This was under the right to vote in Article 3 of Protocol 1 to the European Convention on Human Rights, which provides for the “expression of the will of the people”, which implicitly gives a right to vote – see para 57.) The Court found that the UK was in breach of human rights standards: its reasoning, which as the foremost judicial body considering human rights matters is worthy of great weight, is as follows. First, it considered principles: “69. In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty … Any restrictions on … other rights require to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment …
- There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.
- This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Art 3 of Protocol No 1, which enshrines the individual’s capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations … The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. The Court notes in this regard the recommendation of the Venice Commission that the withdrawal of political rights should only be carried out by express judicial decision …. As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.”
In short, the Court accepted that there are circumstances in which a person who commits crime may properly be deprived of the right to vote, but the context of this must be the need for broadmindedness and tolerance that is the mark of a democratic society and individual consideration of the case of the individual prisoner. The Court then considered the application of the principles to the facts of the case (which involved a life-sentence prisoner). It accepted that there might be a legitimate aim of providing an incentive to citizen-like conduct (para 74), but found that the blanket ban was not proportionate: this was because it affected a significant number of people (some 48,000 people) and included “a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity” (para 77). In summary, the UK Act is: … a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art 3 of Protocol No 1.” In reaching this conclusion, the Court was aware that there were several countries in Europe that had blanket bans, and so there was no international consensus. The Court has established that human rights standards impose a consensus that blanket bans on all prisoners voting are unlawful in international law. The Attorney-General’s careful analysis rests on a similar reasoning: it is to be commended. The position adopted by Hon Lianne Dalziel, MP in expressing the opposition to the Bill at Second Reading was similarly appropriate. Rehabilitation There is a further point, which also raises a human rights issue. A significant aim of incarceration is to provide prisoners with access to rehabilitative assistance: the purpose of this is to allow them to be integrated as valuable members of society. This is reflected in Article 10.3 of the ICCPR which provides that imprisonment “shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. To introduce a measure that provides that no prisoner has any democratic right to have a say in what happens in society runs contrary to this purpose. In this regard, we endorse the view of Hone Harawira, MP, on the Second Reading that it sends the wrong message to “people who are already isolated from our society, who are already alienated from everyday life” because it reveals that “we do not care about those who have fallen by the wayside”. The effect of the passage of the Bill will inevitably be that the matter will be drawn to the attention of the Human Rights Committee of the United Nations. New Zealand will have to announce to the United Nations that, despite having ratified the ICCPR and despite having passed the New Zealand Bill of Rights Act for the express purpose of giving further effect to its international obligations, it has decided to renege on those obligations. This is not a circumstance in which there can be a derogation from the ICCPR (since there is no public emergency threatening the life of the nation for the purposes of Art 4 ICCPR). In short, New Zealand will have to announce that it has taken action that breaches human rights when it has no good reason to have done so. This is both embarrassing and, from the point of view of a nation that relies on trade and tourism, potentially debilitating: it is entirely possible that there will be a significant number of people in advanced nations who will exercise their consumer choice against New Zealand on the basis that it is a nation content to breach human rights. Submission Prepared by Committee Member Kris Gledhill Peter Hosking Executive Director Human Rights Foundation of Aotearoa New Zealand 11 June 2010